The Creation of a Hostile Work Environment by a Workplace Supervisor's Single Use of the Epithet “Nigger”

• Author: Darryll M. Halcomb Lewis
• Published date: 01 June 2016
• DOI: http://doi.org/10.1111/ablj.12080
• Date: 01 June 2016

The Creation of a Hostile Work

Environment by a Workplace

Supervisor’s Single Use of the

Epithet “Nigger”

Darryll M. Halcomb Lewis*

Far more than a “mere offensive utterance,” the word “nigger” is pure

anathema to African-Americans. “Perhaps no single act can more quickly

alter the conditions of employment and create an abusive working environ-

ment than the use of an unambiguously racial epithet such as ‘nigger’bya

supervisor in the presence of his subordinates.”

1

INTRODUCTION

This article argues that the single, isolated use of the epithet “nigger”by

a White workplace supervisor to a Black

2

subordinate constitutes a

*Associate Professor of Law, College of Business Administration, University of Nebraska-

Omaha; J.D., Creighton University School of Law (1978); B.A. Economics, Dartmouth Col-

lege (1975). Line Judge, National Football League (1997–2014); Replay Official, National

Football League (1998–1999 and 2015–present).

1

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (quoting Rodgers v.

Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)).

2

Throughout the article I offset this particular epithet with quotations and italics to

emphasize the article’s focus on this one particular epithet. I will also occasionally refer to

it as simply “the epithet” or “this particular epithet” (without quotations). I capitalize

White and Black as adjectives modifying individual identities so as to better avoid any pos-

sible typographical inequality. See Merrill Perlman, Black and White: Why Capitalization Mat-

ters,C

OLUM.JOURNALISM REV. (June 23, 2015), http://www.cjr.org/analysis/language_corner_

1.php. I use “Black” or “Blacks,” instead of “African Americans” in this discussion because

there are many individuals of African descent who are not indigenous Americans, but

reside and work in the United States, invoking the protections of Title VII.

V

C2016 The Author

American Business Law Journal V

C2016 Academy of Legal Studies in Business

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American Business Law Journal

Volume 53, Issue 2, 383–430, Summer 2016

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hostile work environment and provides a basis to impose vicarious

employer liability under Title VII of the Civil Rights Act of 1964 (Title

VII).

3

The thesis is relatively straightforward: given that courts have

delegated the employer’s power to effectuate a tangible employment

action to workplace supervisors, their single utterance of the epithet

“nigger” is an “extremely serious incident”

4

constituting a hostile work

environment and vicarious liability for the employer.

In general, out of political correctness, American society has euphe-

mized “nigger” (e.g., “the N-word” or the “N-bomb”) and its etymologi-

cal derivatives due to its pejorative and provocative nature.

5

However, like most courts, I employ the actual appellation to avoid the

sanitization of “the most offensive word in [the] English [language].”

6

Typically, although not necessarily, in hostile work environment cases,

the plaintiff–employee is Black, the relevant supervisor employed by the

defendant is White,

7

the utterance of the epithet is directed at the

3

Public L. No. 88-352, tit. VII, 78 Stat. 241, 523 (1964) (codified as amended at 42 U.S.C. §

2000e (2012)). Title VII makes it “an unlawful employment practice for an employer . . . to dis-

criminate against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s race, color,religion,sex,ornationalorigin.”42

U.S.C. § 2000e-2(a)(1). The prohibitions of Title VII apply to employers engaged in an industry

affecting commerce that have fifteen or more employees. 42 U.S.C. § 2000e(b).

4

See infra note 88 and accompanying text.

5

One derivativeis “nigga.” It has beeninculcated, proliferated, and madepopular in the lyrics

of hip-hop, rap, and gangsta rap music and Black comedy. Accordingly, some believe that

“nigga” is not anoffensive term. It is often used asa friendly salutation among someBlacks and

interracial friends(e.g., “Wassup my nigga?”). Fora discussion of the evolution of the epithet,

see RANDALL KENNEDY,NIGGER:THE STRANGE CAREER OF A TROUBLESOME WORD 3–44 (2003) and

JABARAIASIM,THENWORD:WHOCAN SAY IT,WHOSHOULDN’T,ANDWHY (2007).

6

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring)

(citation omitted) (“That epithet has been labeled, variously, a term that ‘sums up . . . all

the bitter years of insult and struggle in America.’”) (quoting LANGSTON HUGHES,THE BIG

SEA 269 (2d ed. 1993) (1940)) (alteration in original).

7

But see Ross v. Douglas County, 234 F.3d 391, 396 (8th Cir. 2000) (rejecting defendant’s

claim that since the supervisor was a Black male, “he could not have had the racial animus

required to support a hostile work environment claim”):

The only reason that [the supervisor] used such racial epithets was because of [the

plaintiff ’s] race. We are well aware that Title VII should not turn into ‘a general civility

code,’ but [the supervisor’s] epithets go beyond mere incivility: the only reason [the

plaintiff] was called a “nigger” was because he was black—that [the supervisor] was also

black does not alter this.

Id. (citation omitted).

384 Vol. 53 / American Business Law Journal

plaintiff

8

in a manner that is not physically threatening, and the utter-

ance is because of the plaintiff ’s race.

9

With the 2013 judicial truncation of the meaning of a workplace

supervisor in Vance v. Ball State University,

10

the U.S. Supreme Court

narrowed the focus of when conditions are ripe to create a hostile work

environment under Title VII. As an extrapolation of and limitation on

who is a supervisor, the reasoning of the foundational hostile work envi-

ronment cases of Meritor Savings Bank v. Vinson,

11

Burlington Industries

Inc. v. Ellerth,

12

and Faragher v. City of Boca Raton,

13

the Vance decision,

magnified the importance of supervisorial authority in the hostile work

environment context by minimizing those employees who legally qualify

for the title of supervisor under Title VII.

14

The jurisprudence of those

decisions retains the dichotomy of conduct standards by coworkers and

supervisors,

15

and continues to embrace the disjunctive severe or perva-

sive conduct tests to establish a hostile work environment.

16

In light of Vance, and not counter to the mandates of Faragher and

Ellerth shielding employers from automatic strict liability,

17

this article

8

But see Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“[A] racial epithet

need not be directed at a plaintiff in order to contribute to a hostile work environment[;]

the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a

fellow employee or supervisor also can impact the work environment.”) (citation omitted).

9

Plaintiffs who are not Black are also often called “nigger” in a degrading, offensive, and

insulting manner. See, e.g., El-Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 464 (6th Cir.

2006) (involving a Jordanian plaintiff who was called a “sand nigger” by his coworkers).

10

133 S. Ct. 2434 (2013).

11

477 U.S. 57 (1986).

12

524 U.S. 742 (1998).

13

524 U.S. 775 (1998).

14

See infra Part I.B.

15

See generally infra Parts II.B & C.

16

See infra Part II.A.

17

See Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013):

Under Title VII, an employer’s liability for [workplace] harassment may depend on the

statusof the harasser.If the harassingemployee is the victim’sco-worker, the employeris

liable only if it was negligent in controlling working conditions. In cases in which the har-

asser is a “supervisor,” however, different rulesapply. If the supervisor’s harassment cul-

minatesin a tangible employmentaction, theemployer is strictlyliable. But if no tangible

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